IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)
CRIMINAL APPEAL NO. 188 OF 2005
ALKADI WILLIAM @ SUPA ………………..….… APPELLANT
VERSUS
THE REPUBLIC ……….……..……………….…. RESPONDENT
(Appeal from the conviction of the High
Court of Tanzania at Bukoba)
(Luanda, J.)
dated the 6th day of May, 2005
in
Criminal Session Case No. 63 of 1999
------------JUDGMENT OF THE COURT
15 March & 12 June 2007
RUTAKANGWA, J.A.:
The appellant was charged with the offence of murder c/s 196
of the Penal Code before the High Court sitting at Bukoba. He was
alleged to have murdered his wife, Adelica w/o Alkadi on 3rd
September, 1995 at Itongo Magata Village within the District of
Muleba. He denied the charge. However, after a full trial, the High
Court (Luanda, J) found him guilty as charged and convicted him. He
2
was sentenced to suffer death by hanging. Being aggrieved, he has
lodged this appeal.
In this appeal, the appellant is being represented by Mr. Muna,
learned advocate.
Mr. Muna has filed only one ground of appeal
which reads as follows:
“THAT the learned Hon. Judge had erred in
law
by
holding
that
the
circumstancial
evidence available on record irresistibly point
to the appellant’s guilty (sic) and is incapable
of any other reasonable explanation”.
On the other hand, the appeal has been vigorously resisted by the
respondent Republic, which is being represented by Mr. Kameya,
learned State Attorney.
Before we consider the submissions made by the two learned
counsel in support of and/or against the appeal, we think it is helpful
to give a brief account of what apparently led to the appellant’s
conviction.
3
As already alluded to above, the deceased Adelica was up to
the day she died the only wife of the appellant. The couple had been
blessed with two children, namely Darius and Clementina. Together
with their two children they stayed with one Johanitha d/o Alois, who
was the deceased’s young sister.
According to Johanitha, who testified as PW1 at the trial of the
appellant, on 2nd September, 1995, the appellant did not sleep at
home.
He only returned home on 3rd September, 1995 at about
10.00 hours.
By then the deceased had gone to church.
The
appellant then left before the deceased returned home, only to come
back at about 1.00 p.m. The appellant was, apparently, drunk. The
appellant and the deceased had a quarrel about money.
The
appellant threatened to kill his wife if she refused to give him his
money. Adamantly, the deceased did not budge an inch. As the
quarrelling continued, the appellant chased away PW1 Johanitha by
ordering her to go to fetch grass. According to PW1 that was an
unusual request.
All the same she obeyed, as the appellant
threatened to kill her if she failed to do so.
4
While PW1 was away, one Oswald, the son of Grace Nobert
(PW3) heard the deceased calling his mother. PW3’s residence was
about 150 paces away from that of the appellant. Oswald informed
his mother accordingly.
PW3 went to the appellant’s home.
She
found the deceased in an underskirt but with blood covering her
body. The deceased requested PW3 to call their other neighbour one
Pelagia Adolf (PW4) and she did so. When PW3 and PW4 arrived at
the appellant’s residence they found the deceased lying face
upwards. She died shortly later. They then discovered that she had
a cut wound on her neck. As the appellant was not around, PW3
rushed back to her home to inform her husband.
An alarm was
raised and the police were informed by the deceased’s brother, one
Oswald Bombo (PW2) who arrived at the scene sometime later. No.
D 8719 D/Cpl. Nyange (PW5) visited the scene of the crime. Shortly
later the appellant arrived.
PW5 together with the appellant and others began to look for
the murder weapon. Their search led them to a nearby pit latrine
wherein they saw a panga.
The panga was retrieved from the
latrine. It had blood on it. PW5 retained it. Then some blood was
5
spotted at the back of a shirt which the appellant was wearing. PW5
took possession of that shirt too. Then the appellant was arrested
and sent to Muleba police station as a prime suspect in the murder of
the deceased.
The panga, the appellant’s shirt and what PW5
described as the “clothes of the deceased” were sent to the Chief
Government Chemist for blood analysis.
The report of the Chief
Chemist which was admitted in evidence as Exhibit P2 shows that the
blood on the panga and clothes was human blood of group B. An
autopsy performed on the body of the deceased established the
cause of death to be severe haemorrhage and shock. The appellant
was then formally charged with the murder of his wife.
The appellant relied on the defence of alibi. He told the trial
High Court that on the fateful day he left his home after lunch, at
about 1.30 p.m. for Luanga Village to see his brother. It was when
he was with his brother at that village that he was informed of the
murder of his wife. He hastened back home being accompanied by
his brother, only to be subsequently arrested and charged for the
murder of his wife, an offence he vehemently denied to have
committed.
6
In support of his sole ground of appeal, Mr. Muna has urged us
to hold that the learned trial High Court judge erred in rejecting the
strong defence of alibi in preference to the doubtful prosecution
evidence.
To him the circumstancial evidence upon which the
prosecution case rested only led to mere suspicions.
Such
suspicions, however strong, could not be a basis of a criminal
conviction in a criminal charge, he submitted.
In support of this
submission, he referred us to two cases, namely, R. v. Israili Epuki
s/o Achietu (1934) EACA 166 and R. v. Siprian s/o Nshange
(1947) 14 EACA 17. He invited us to disregard the evidence of
blood allegedly found on the panga (Exhibit P4) and on the
appellant’s shirt.
He assigned two reasons.
One, there was no
evidence to connect the blood with either the deceased or the
appellant.
Two, the appellant’s shirt was never tendered in
evidence.
On his part, Mr. Kameya pressed us to sustain the conviction of
the appellant on the basis of the truthful evidence of PW1. To him
no one could have killed the deceased within the ten (10) minutes of
PW1’s departure from and return to the scene of crime. He further
7
argued that the return of the appellant after the murder wearing a
shirt which had blood stain augmented the circumstancial evidence
against him as contained in PW1’s evidence.
However, at the
prompting of the court he quickly conceded that there was no
evidence on record to connect the blood on the appellant’s shirt with
the deceased and/or to prove that it was fresh blood. There was no
blood sample taken from the deceased for testing to establish the
deceased’s blood group.
There being no dispute on the fact that the deceased Adelica
was murdered, the only issue in this appeal becomes the identity of
the murderer. Was the appellant the murderer?
The learned trial judge sat with three assessors.
The 1st
assessor opined that the appellant was guilty as charged only
because the appellant admitted that the panga which was retrieved
from the pit latrine was his.
The 2nd assessor accepted it as an
established fact that the deceased had been murdered. However, he
opined that the evidence on record did not rule out the possibility of
the murder being committed by another person other than the
8
appellant. The 3rd assessor was convinced that the murderer was the
appellant because, as he put it:
“… No one could come and commit the
offence
shortly
after
the
departure
of
Johanitha”.
In his judgement, the learned trial judge was of the settled
view that the case against the appellant was exclusively based on
circumstancial evidence.
He also properly directed himself on the
legal requirement to the effect that to “justify a conviction on
circumstancial evidence, the inculpatory facts must be incompatible
with the innocence of the accused and incapable of explanation upon
any other reasonable hypothesis than guilt of the accused”. Relying
on the case of Samson Daniel v. R. (1934) 1 EACA 154, the
learned trial judge went on to hold, quite correctly in our view, that:
“And in dealing with circumstancial evidence,
each link in the chain must be carefully tested
and, if in the end, it does not lead to the
irresistible conclusion of the accused’s guilt,
the whole chain must be rejected”.
9
After cursorily examining the evidence of PW1, PW2, PW3, PW4
and PW5, the learned judge was satisfied beyond reasonable doubt
that the same establish an unbroken chain leaving irresistibly to the
guilt of the appellant. This is how he put it:
“Johanita (PW1) was the one who said that
accused threatened to kill the deceased if she
refused to dish out money. The deceased did
not give in. The accused sharpened a panga.
Then the accused ordered Johanita (PW1) to
go and cut grass or else she will be killed. He
repeated four times. That was unusual it was
her duty to do that.
The witness obeyed.
She left leaving behind the accused and the
deceased. But before she accomplished the
mission she was informed about the killing of
the deceased. She rushed home. She saw
the dead body of the deceased.
And this
witness said it took 10 minutes from the time
she left for grass and when she heard about
the killing” (emphasis is ours).
The learned trial judge was of the firm view that given this short
interval of 10 minutes no one else could have killed the deceased,
but the appellant.
10
We have deliberately provided this emphasis to underline our
earlier expressed concern that the evidence of the witnesses PW1 –
PW5 was cursorily examined. Had it been subjected to an objective
scrutiny and considered as one whole the learned judge would have
discovered that either PW1 was lying in her evidence and/or that the
prosecution evidence did not point irresistibly to the guilt of the
appellant. We are convinced of this for the following reasons.
First of all PW1 did not tell the trial court that upon arriving
home she “saw the dead body of the deceased”. At first she testified
to the effect that while on her way to cut grass she was informed by
one Mama Mary (who never testified), that her sister had been killed
by the appellant and she returned home forthwith. Within the same
breath she testified that on arrival home she found her sister “in her
last breath … throwing her legs and arms”.
Secondly, on this latter
assertion PW1 was belied by PW2 (her elder brother), PW3 and PW4
who unequivocally told the trial High Court that by the time PW1
arrived home (i.e. at the scene of crime), Aderica had long passed
away.
Indeed PW2 was very specific in his evidence that PW1
arrived while they were retrieving the panga from the latrine.
11
Thirdly, this piece of evidence goes further to discredit PW1 in her
assertion that she preceded the appellant to the scene of the crime.
In that case, therefore, even PW5, the police officer who received the
murder report from PW2 at 4.00 p.m. while at Muleba Police Station,
some 2.5 kilometers away, arrived at the appellant’s home before the
arrival of PW1.
Fourthly, PW2 told the trial High Court that he
received the news about the murder of his sister while at Muleba
township at 3.00 p.m. He proceeded to the scene. He then returned
to Muleba township to report the incident to the police. Thereafter
he returned to the appellant’s home being accompanied by PW5. If
this evidence is accepted as true and we have no reason to doubt it,
then it makes nonsense of the assertion by PW1 that the murder of
the deceased took place within a span of ten (10) minutes from the
time she was allegedly forced to go and cut grass and when she
returned home to find her sister either dead or “in her last breath”.
Other inculpatory facts relied upon by the prosecution and the
learned judge were the alleged act of sharpening the panga (Exhibit
P4) by the appellant when threatening to kill the deceased and the
appellant’s shirt. Both items, as already shown above, were allegedly
12
found to have blood on them.
The Chemist’s report, Exhibit P2,
shows that the blood on the panga and what is referred to as “nguo”
was human blood of ‘B’ group.
We shall assume that the article
referred to as ‘nguo’ was the appellant’s shirt. But this allowance or
assumption does not strengthen the case against the appellant. This
is because firstly, there is no iota of evidence to show that the
deceased blood was of ‘B’ group. Secondly, no clothes, leave alone
the alleged blood stained shirt of the appellant, were tendered in
evidence. This was a fatal omission on the part of the prosecution.
Worse still, although Exhibit P4 (the panga) was recovered
immediately at the scene of the crime, no evidence was led to show
that it was found to have been just sharpened in order to support the
assertions by PW1 to that effect.
Furthermore, the prosecution
evidence does not show the extent and nature (whether fresh or dry)
of the blood allegedly seen on the appellant’s shirt.
So these
inculpatory facts do not irresistibly point to the guilt of the appellant
in our view.
There is yet another nagging issue in this case. The learned
trial judge found PW3 to be a very reliable and truthful witness.
13
From our own re-evaluation of her evidence and other evidence on
record, we are satisfied that he was entitled to do so. Going by her
evidence it is beyond doubt that the deceased had a lucid memory by
the time she (PW3) arrived at the home of the appellant. That is
why she not only managed to call out PW3 who was 150 paces away
and be heard clearly, but she asked PW3 to go and call PW4. In
such a state of mind one wonders why if the murderer was known to
the deceased, she failed to mention him/her to PW3.
Could the
deceased have failed to name the appellant as her murderer if he
was indeed the one who inflicted the fatal wound?
Anybody can
hazard a guess. But since it is the duty of the prosecution to prove
the guilt of an accused beyond any reasonable doubt, then the
benefit of doubt arising from this failure must of necessity be
resolved in favour of the appellant.
As observed earlier the prosecution case against the appellant
was based exclusively on circumstancial evidence.
There is no
gainsaying that the bulk of this evidence came from PW1 Johanita,
whose credibility was not above reproach and the conviction of the
appellant was almost entirely based on her evidence. But even if one
14
were to assume that her evidence was nothing but the truth, where
does that evidence lead us to? Does it irresistibly lead to only one
inevitable conclusion that it was the appellant who murdered the
deceased as the trial High Court judge found and Mr. Kameya
ardently argued? In our considered opinion it does not. As correctly
submitted by Mr. Muna, for the appellant, the evidence of PW1 does
not take us beyond mere suspicion. That the appellant’s panga was
found with blood, which blood was not proved to be of the deceased
blood grouping, cannot be taken to be gravely incriminating. In the
case of Kasaja s/o Tibagina v. R. (1952) 19 EACA 268, the
Court of Appeal for Eastern Africa quashed a conviction for murder by
spearing where the incriminating evidence consisted of the fact that
the accused’s spear had been found near the body and that the
accused had not answered the alarm upon the sounding of which it
was the duty of all villagers to turn out . Similarly, in R. v. Siprian
s/o Nshange (1947) 14 EACA 72, the same Court quashed a
conviction for arson based on circumstancial evidence of a threat to
burn coupled with failure to answer the alarm. So in this case, a
threat to kill as alleged by PW1 unaccompanied by other inculpatory
15
facts, cannot be relied on to justify a conviction for murder. Going by
the credible evidence of PW2, PW3, PW4 and PW5, it cannot be held
that in the peculiar circumstances of this case, the evidence
irresistibly led to the conclusion that the appellant and no other
person killed the deceased.
All
in
all,
after
dispassionately
considering
the
entire
prosecution evidence we are of the settled mind that that evidence
casts strong suspicion against the appellant. But, it fell far too short
of proving the serious charge of murder beyond reasonable doubt.
We are accordingly unable to share the certitude of the trial judge to
the effect that it was the appellant who murdered his wife Aderica.
For the foregoing reasons, we feel constrained to allow this
appeal in its entirety.
The conviction for murder and the death
sentence are quashed and set aside. The appellant is to be set free
forthwith unless he is otherwise lawfully detained.
16
DATED at DAR ES SALAAM this 16th day of April, 2007.
D.Z. LUBUVA
JUSTICE OF APPEAL
J.A. MROSO
JUSTICE OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
( S.M. RUMANYIKA )
DEPUTY REGISTRAR
17
Delivered under my hand and Court Seal in open Court/Chambers at
Mwanza this ………………… day of ……………………………………..
………………………………………….
DEPUTY REGISTRAR